Nwabufo Emembo V. Akunnia Nnamdi Iwenofu (2009)

LawGlobal-Hub Lead Judgment Report

OLUKAYODE ARIWOOLA, J.C.A.

This is an appeal by the defendant against the judgment of Anambra State High Court sitting at Onitsha delivered by the Hon, Justice J. I. Nweze on the 28th of April, 2006 in suit No.0/618/2001. The Plaintiff at the lower Court had claimed against the Defendant as follows:

“(a) A declaration that the plaintiff is entitled to the statutory right of occupancy over the piece and parcel of land verged red on plan No PA/MLS/ANOO1/2002 situate and being at Plots 11 and 12 Owellebo Layout, Onitsha

(b) N10,000,000 (Ten Million Naira) general damages for trespass.

(c) An order of perpetual injunction restraining the Defendant by himself, his servants, agents, privies, heirs, successors and otherwise for any further acts of trespass on the said piece and parcel of land.”

Pleadings were filed and exchanged and the case proceeded to trial. The plaintiff testified and called one witness while the Defendant/Appellant also testified and called one witness in defence. The plaintiff traced his root of title to a grant by the Umuezearoli family pursuant to the judgment in Suit No. 0/358/83 between the plaintiff and the Umuezearoli family of Onitsha. The land in dispute were plots 11 and 12 in Oweilebo Layout. When the plaintiff commenced development on the said land by erecting wall fence, he was challenged by the defendant who went to Court in Suit No.0/180/89 but the case was subsequently dismissed. The plaintiff herein had no counter claim in the said case, hence the commencement of the instant action thereafter. At the end of the trial, judgment was given in favour of the plaintiff/Respondent but against the Defendant/Appellant.

Dissatisfied with the judgment, the defendant filed this appeal on six Grounds. The said grounds without their particulars are as follows:

Grounds of Appeal:

1. The trial judge erred in law and on the facts when he held that the plaintiff’s ownership of the land in dispute had been already determined in Suit No.0/180/89.
2. The trial judge erred in law and on the facts in holding that the parties are ad idem that the land in dispute in the instant case is the same land in dispute in Suit No. 0/180/89 where as it was clear from the proceedings that the contrary is the case
3. The Court erred in law in holding that the order made by the court in Suit No.0/358/83 as in NO.2 thereof (cited in Suit No.0/180/89) for plots 11 and 12 to be granted to the Plaintiff (in the instant case)gave him title to the purported plots of land, without more.
4. The trial judge erred in law when he held that the Court in 5. Suit No.0/180/89 decided that the land in dispute belonged to the Plaintiff.
5. The trial Court erred in law when he accepted without more the plea that the land in issue in this suit belonged to Umuezearoli.
6. Judgment is against the weight of evidence.

Upon being served with the record of appeal, parties filed and exchangedbriefs.

When the appeal came up for hearing on 12th January, 2007, Mr. Balonwu, S.c., who held the brief of F.A. Onukwoba Esq. referred to the Appellant’s brief of argument dated 26/06/2007 but filed on 27/06/2007. He adopted and relied on the said brief. He finally urged the Court to allow the appeal and set aside the judgment of the lower Court.

On the other hand, Mr. C. N. Mebo for the Respondent sought to withdraw the Respondent’s brief of argument dated 2nd October, 2007 but filed on 22nd October, 2007. He referred to the Respondent’s brief of argument dated and filed on 6th June, 2008.

He adopted and relied on the said brief of argument and urged the Court to dismiss the appeal. The Respondent’s brief of argument filed on 22/10/2007 having been withdrawn was accordingly struck out.

The appellant formulated the following six issues from the above grounds of appeal for determination of this appeal.

1. Whether the trial Judge was right in basing his judgment on a previous decision in suit No.0/180/89 even though the decision did not give the plaintiff title to the land and was not relevant.
2. Whether the parties were indeed ad idem on the identity of the land in dispute in view of the fact that it was described as plots 11 and 12 in Owellebo Layout by the defendant in Suit No.0/180/89 whereas the plaintiff in his pleadings did not identify the land as such.
3. Whether without more, the Order made in Suit No.0/358/83 “cited in Suit NO.0/180/89” and relied upon by the trial judge in this case, under appeal, to the effect that that plots 11 and 12 in Owellebo Layout Onitsha were to be granted to the plaintiff (now respondent) by Umuezearoli family, gave him title to the land in dispute.
4. Whether the Judge was right in law and on the facts in holding that the land in dispute in the Suit No.0/618/2001, under appeal, belonged to the plaintiff (now respondent) despite the fact that he has no valid root of title thereto.
5. Whether the trial Court was right in holding that the land in dispute belonged to Umuezearoli family, when there was no evidence before it in support thereof.
6. Whether in view of these issues, the trial court did properly evaluate the evidence before it before entering judgment for the Plaintiff/Respondent.

The Respondent also formulated three issues for determination as follows:

Issue No.1-

Did the learned trial Judge erred when he held that the Plaintiff’s ownership of the land in dispute had already been determined in Suit No.0/180/89.

Issue No.2-

Are the parties ad idem that the land in dispute in this case is the same with the land in dispute in Suit No.0/180/89.

Issue No.3-

Did the lower Court err by holding that the Plaintiff now Respondent was granted plots 11 and 12 Owellebo Layout, Onitsha by Suit No.0/358/83 and that as decided in suit No.0/180/89 that the land in dispute belongs to the Plaintiff which is within Owellebo land which Umuezearoli people won at the Supreme Court in SC 11/82.

Before I proceed to consider the issues for determination in this appeal, I wish to state that certain facts are not in dispute having been clearly admitted by parties or not denied at all, hence such facts ordinarily require no further proof. See; Salawu & Anor vs. Yusuf (2007) 10 SCM157, Mozie & Ors. Vs. Mbamalu & Ors (2006) 12 (Pt.1) SCM 306.

The said admitted facts requiring no further proof are as follows:

• That the Appellant is a member of Umuchinukwu family of Isiokwe village, Onitsha.
• That there was a land dispute between the Umuezearoli family and Isiokwe village.
• That the said land dispute was fought all through the various Courts up to the Supreme Court.
• That the apex Court in Appeal No.SC/11/82 finally gave judgment on the said land dispute in favour of the Umuezearoli family against the Isiokwe people.
• The successful Umuezearoli family later obtained writ of possession from Onitsha High Court and took possession.
• The Respondent had cause to sue the members of Umuezearoli of Onitsha inrespect of his own property which they trespassed upon in exercise of their writ of possession.

– The matter was eventually settled amicably by parties with a consent judgment given in January, 1987 by Aneke, J.

– In the said judgment of January 1987 the Umuezearoli family agreed and later granted a portion of their land to the Respondent.

– The Appellant later disturbed the Respondent from using his building materials earlier deposited on the said plots and indeed demolished the wall fence the Respondent had erected on the land.

– The Appellant challenged the Respondent in Court in Suit No.0/180/89 and his case was dismissed.

– There was no appeal against the dismissal of the Suit, and the Respondent again proceeded to develop the said land granted to him but was again disturbed by the Appellant.

– The Respondent then went to Court for the Court to declare that he is entitled to statutory right of occupancy on the said parcel of land, damages and a perpetual injunction against the Appellant.

– The case proceeded to trial and the judgment given in favour of the Respondent but against the Appellant has led to the present appeal.

Ordinarily the Court is not obliged to accept the issues for determination as formulated by the appellant. The Court may resort to the issues distilled from the Grounds of Appeal filed by the appellant in the Respondent’s brief of argument. Indeed, in appropriate cases, the Court may suo motu decide to formulate or reformulate issues for determination of an appeal. But any such issue formulated by the Court must not “depart from the contents or purport and ramifications of the issues already framed by the parties and distilled from the grounds of appeal. See; Neka B.B.B. Manufacturing Co. Ltd. Vs. A.C.B. Ltd. (2004) 2 NWLR (pt.858) 521, (2004) 17 NSWR 240 at 250 Fabiyi vs. Adeniyi (2000) 6 NWLR (pt 662) 532 at 546, Unity Bank Plc & Anor vs. Bouari (2008) 2 SCM 193.

I desire in this case to formulate the following issues from the grounds of Appeal filed by the Appellant to determine this appeal.

Issues for Determination.

1. Whether the trial judge was right in holding that parties were ad idem on the identity of the land in dispute being the same parcel of land in this case as in an earlier suit No. 0/180/89 and that the Plaintiff’s ownership of the said land had been determined. (Grounds 1, 2 & 4)
2. Whether the trial judge was right in holding that the land in dispute was the parcel of land granted to the plaintiff by the Umuezearoli family sequel to the judgment in Suit No. 0/358/83, out of their family land (Grounds 3 & 5) The two issues being interwoven shall be treated together.

As earlier stated, it is not in dispute that the appellant herein was the plaintiff in Suit No. 0/180/89 while the Respondent herein was the Defendant. It is also not in dispute that the land then in dispute upon which the instant appellant sued the Respondent for trespass was the same parcel of land upon which the Respondent sued the Appellant. It was contended by the appellant that in the suit he instituted against the Respondent in Suit No.0/180/89 he did not describe the land in dispute as plots 11 & 12. His reason was that there was no Owellebo Layout scheme or the layout itself and none was in evidence. That it was in the suit filed by the Respondent which is now on appeal that the land was described as plots 11 & 12 in Owellebo Layout. The Appellant further contended that the said plots were not tied to any layout plan or scheme, even though the scheme was pleaded. The appellant therefore submitted that the parties could not have been ad idem on the identity of the land then in dispute.

On this issue, the Respondent referred to the pleadings of the appellant and the judgment of the trial Court in Suit No. 0/180/89 which was tendered as Exhibit P4. In the statement of Defence of the Appellant filed to the Respondent’s claim before the trial Court the Respondent avered in paragraph 8 as follows:

“In answer to paragraph 5 & 6 (sic) the Defendant says, that he sued the plaintiff for trespass to the land in dispute in suit No.0/180/89. The case was not decided either way as the court held that both himself and the Defendant were in possession of the land. As the Plaintiff was not infact in possession, the Defendant decided to forget all about the matter.

He was therefore surprised that the Plaintiff turned round to institute this Suit against him.”

In his direct testimony at page 77 of the record of appeal, the Appellant as defendant stated that the land in dispute belong to him having been granted by the Isiokwe village since 1978. He stated further that he sued the Respondent in respect of the land in dispute in an earlier case. Under cross examination by the Plaintiff/Respondent’s Counsel, the Appellant denied that the land at Owellebo has plot numbers. He however admitted that he was aware of the decision of the Supreme Court which ended in favour of the Umuezearoli people in 1982. (See page 78 of the record of appeal.

In the judgment being appealed against, the trial judge found that by exhibit P4, which was the judgment in suit No.0/180/89, instituted earlier by the appellant against the Respondent the land in dispute in that case as in the instant case, is the same land which was granted by the Umuezearoli family to the Plaintiff/Respondent which is described as Plots 11 & 12 in Owellebo Layout. It was also found by the trial Court from Exhibit P4, that the same land formed part of a larger parcel of land in respect of which the Supreme Court decreed title in favour of the Umueazearoli family in suit No. SC/11/82.

As earlier stated, the Appellant did not appeal against the judgment of the Hon. Justice C. J. Okoh in Suit No.0/180/89,hence it remains binding on the Appellant in particular, and both parties in general. The judgment will serve as estoppel to bar the Appellant from claiming that the land in dispute in that case is not the same as the one granted to the Respondent by Umuezearoli family described as plots 11 & 12 in Owellebo Layout. The Appellant may not have described the said land as plots 11 & 12 Owellebo layout, that was his choice, but that does not alter the findings of the trial Court which led to the final decision against which there was no appeal. See; Shell Petroleum Dev. Co. Nig. Ltd. & Anor vs. X. M. Federal & Anor (2006) SCM (pt2) 377 at 384. CBN vs. Igwillo (2007) 14 NWLR (pt.1054) 393.

As a general principle of law, the evaluation of evidence are the primary functions of a Court of trial, which saw, heard and assessed the witnesses called in a case. Therefore where a trial Court has unquestionably evaluated the evidence adduced and are not perverse, it is certainly not the business of the Court of appeal to substitute its own view for those of the trial Court. See; Alhaji Ranfu Gbadamosi vs. Olaita” Dairo (2007) 25SCM 48 (2007) 3 NWLR (pt 102) 282, Mogaji vs. Odofin (1979) 1 SC 91,

Ezukwu vs. Okachukwu (2004) 17 NWLR (pt 902) 2137, (2004) 7 SCM1.

It is trite that parties are bound by the case they put forward to the Court, and in an appeal, parties are normally confined to their case as pleaded in the Court of first instance. See; Horizon Fibres (Nig.) Plc vs. M.V. Baco Liner (2002) 8 NWLR (pt 769) 466, F. B. N. Plc. Vs. Akparabony Community Bank Ltd. & 1 or. (2006) 1 NWLR (pt.962) 438 and 475. In other words, parties and the Court are bound by the averments in the pleadings. See; Adetoun Oladeji Nig. Ltd. Vs. Nigerian Breweries Plc. (2007) 2 SCM 103 at 122 & 25. UBA vs. Ayodare & Sons (2007) 9 SCM 133.

There is no doubt that the trial Court had properly evaluated the evidence. adduced and ascribed probative value to the evidence before arriving at its conclusion. It follows therefore from the aforesaid that both parties knew and agreed to the identity of the land in dispute. In other words, the parties were ad idem on the identity of the land in dispute. On whether or not the Court in Suit No.0/180/89 had decided on the Plaintiff’s ownership of the land in dispute, the fact that the Court found that the land in dispute was part of the large parcel of land of Umuezearoli family, out of which they granted the Respondent is no longer in controversy. If the Appellant had desired to contest that findings and decision of the Court in the suit he instituted in No. 0/189/89 he could have appealed against the decision and had the issue decided either way. But there was no appeal against the decision hence it remains valid.

Generally, to succeed in an appeal against findings of fact, the appellant must of necessity show that the trial court made imperfect or improper use of the opportunity of hearing and seeing the witness or has drawn wrong conclusion from its findings on the accepted or proved facts. See; Okolo vs. Uzoka (1978) 4 SC 77187 Alhaji Isah T. Sokwo vs. Joseph Baku Kpongbo & Ors. (2008) 12 SCM (pt.1) 188 & 209.

In my view the appellant has not shown that the findings of the trial court were perverse and have led to a miscarriage of justice. I do not see any reason to disturb the findings of the trial court in this case.

With the available evidence (Oral and documentary) before the trial court, in particular, the judgments of the Supreme Court and that of Onitsha High Court, in appeal No.SC/11/82 and Suit No. 0/180/89 respectively, I am convinced that the trial Court was right to have granted the Plaintiff/Respondent statutory right of occupancy on the land in dispute which the Court found was identified as plots 11 & 12 Owellebo Layout, in Onitsha and I so hold.

Accordingly the two issues I formulated are hereby resolved against the Appellant but in favour of the Respondent. In the final conclusion this appeal fails for lacking in merit and it is accordingly dismissed. In the circumstance, the judgment of the Hon. Justice J. I. Nweze delivered on the 28th April, 2006 in suit No. 0/618/2001 in favour of the Respondent is hereby affirmed.

There shall be costs of N20,000.00 against the Appellant but in favour of the Respondent.

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Other Citations: (2009)LCN/3484(CA)